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A federal judge yesterday refused to stop the upcoming execution of a condemned Ohio killer
facing a never-tried lethal injection process that the inmate’s attorneys say will cause him agony
and terror.

Judge Gregory Frost’s ruling moved Dennis McGuire one step closer to execution by the two-drug
method developed after supplies of Ohio’s former execution drug dried up. Gov. John Kasich and the
Ohio Parole Board have both rejected McGuire’s plea for clemency.

The judge said McGuire had failed to present evidence that he would suffer breathing problems
alleged by his attorneys — a phenomenon known as “air hunger” — and said the risk to McGuire is
within Constitutional limits.

“The evidence before this court fails to present a substantial risk that McGuire will experience
severe pain,” Frost said.

The judge rejected a similar request last year by death row inmate Ronald Phillips, who was set
to become the first to die by the new method until Kasich delayed his execution to study the
feasibility of Phillips’ donating organs to family members.

McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in
Preble County in western Ohio.

A message was left with his attorneys seeking comment.

McGuire also asked the U.S. Supreme Court to delay the execution on the grounds that the jury
that sentenced him to die never got to hear the full extent of his chaotic and abusive
childhood.

In the lethal injection appeal, McGuire’s lawyers had asked Frost to delay the execution while
they challenge the proposed two-drug system.

The drug combination won’t sedate death row inmate McGuire properly, and he will experience the
suffocation-like air hunger syndrome, McGuire’s attorneys said in filings earlier this month.

“McGuire will experience the agony and terror of air hunger as he struggles to breathe for five
minutes after defendants intravenously inject him with the execution drugs,” the inmate’s attorneys
said in a Jan. 6 court filing.

They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the
problem.

The state opposed any delay, presenting evidence that disputed the air hunger scenario. They
called McGuire’s appeal an eleventh-hour request that was years too late.

The U.S. Constitution bars cruel and unusual punishment. But that doesn’t mean execution
procedures must be entirely comfortable, Thomas Madden, an assistant Ohio attorney general, told
Frost on Friday.

“You’re not entitled to a pain-free execution,” Madden said.

Supplies of Ohio’s former execution drug, pentobarbital, dried up as its manufacturer put it off
limits for executions.

Ohio’s Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative,
combined with hydromorphone, a painkiller, to put McGuire to death.

Other death penalty states are being challenged by supply shortages.

Missouri gave up attempts to use propofol over concerns the move could create a shortage of the
popular anesthetic if the European Union, which opposes the death penalty, restricted its
export.

In Georgia, the state’s attempt to use a non-federally regulated dose of pentobarbital is the
subject of a lawsuit.

The combination of drugs Ohio intends to use has never been used in a U.S. execution. They are
included in Kentucky’s backup execution method, and Florida uses midazolam as part of its
three-drug injection process.